United States v. Bombino (Persico) ( 2018 )


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  • 17-2701
    United States v. Bombino (Persico)
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order filed
    on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
    document filed with this court, a party must cite either the Federal Appendix or an electronic
    database (with the notation “summary order”). A party citing a summary order must serve
    a copy of it on any party not represented by counsel.
    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
    the 2nd day of May, two thousand eighteen.
    Present: ROBERT A. KATZMANN,
    Chief Judge,
    JOHN M. WALKER, JR.,
    Circuit Judge,
    VICTOR A. BOLDEN,
    District Judge.*
    ________________________________________________
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                                  No. 17-2701
    JAMES C. BOMBINO, ALICIA DIMICHELE, AKA Alicia
    Garofalo, EDWARD GAROFALO, JR., AKA Bobble,
    AKA Tall Guy, THEODORE N. PERSICO, JR., AKA
    Skinny, AKA Teddy, THOMAS PETRIZZO, LOUIS
    ROMEO, MICHAEL D. SCIARETTA, AKA Mike LNU,
    ANTHONY PREZA, FRANCIS GUERRA, AKA BF,
    Defendants,
    MICHAEL J. PERSICO,
    Defendant-Appellant.
    *
    Judge Victor A. Bolden, United States District Court for the District of Connecticut, sitting by designation.
    ____________________________________________
    For Defendant-Appellant:           MARC FERNICH, Law Office of Marc Fernich (Sarita Kedia,
    Sarita Kedia Law Offices, on the brief), New York, NY.
    For Appellee:                      ALLON LIFSHITZ (Amy Busa, on the brief), Assistant United
    States Attorneys, Of Counsel, for Richard P. Donoghue, United
    States Attorney for the Eastern District of New York,
    Brooklyn, NY.
    Appeal from the United States District Court for the Eastern District of New York
    (Irizarry, C.J.).
    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    and DECREED that the judgment of the district court is AFFIRMED.
    Defendant-Appellant Michael Persico appeals from a final judgment entered by the
    district court (Irizarry, C.J.) on August 25, 2017, following his guilty plea to a single count of
    conspiring to make an extortionate loan. On appeal, Perisco principally challenges the denial of
    his motions to withdraw his plea on the grounds that the government breached his plea
    agreement, there was an insufficient factual basis for his guilty plea, and he did not adequately
    understand the charge to which he pleaded guilty. We review Persico’s arguments concerning the
    plea agreement “de novo and in accordance with principles of contract law,” United States v.
    Riera, 
    298 F.3d 128, 133
     (2d Cir. 2002), while we review the district court’s decision regarding
    the adequacy of the factual basis for Persico’s plea allocution for “abuse of discretion,” United
    States v. Adams, 
    448 F.3d 492, 498
     (2d Cir. 2006). We assume the parties’ familiarity with the
    underlying facts, the procedural history of the case, and the issues on appeal.
    In pertinent part, Persico’s plea agreement provided that the government would “take no
    position concerning where within the Guidelines range determined by the Court [his] sentence
    should fall” and “make no motion for an upward departure under the Sentencing Guidelines.”
    
    2 App. 116
    . Persico first contends that the government breached these provisions by informing the
    Probation Department that it could prove criminal conduct for which Persico was not convicted
    by a preponderance of the evidence. Assuming arguendo that the government did so,1 the plea
    agreement nevertheless would not have been breached. The provisions of the plea agreement on
    which Persico relies refer only to advocating to the district court after it determines the
    applicable Guidelines range and make no mention of earlier communications with the Probation
    Department. More importantly, elsewhere the plea agreement provided that the government
    would “advise the Court and the Probation Department of information relevant to sentencing,
    including criminal activity engaged in by the defendant, and such information may be used by
    the Court in determining the defendant’s sentence.” Id. at 110. That is precisely what occurred.
    The government also did not breach the plea agreement in connection with Persico’s
    Fatico hearing. Although Persico believes that the government somehow improperly “goaded”
    the district court into holding such a hearing, Persico Br. at 24, that is belied by the record. The
    government made clear that it was not requesting a Fatico hearing; instead, the hearing was
    ordered sua sponte by the district court. See United States v. Persico, 
    266 F. Supp. 3d 632, 634
    (E.D.N.Y. 2017); United States v. Persico, No. 10 Cr. 147, 
    2015 WL 893542
    , at *6 (E.D.N.Y.
    Mar. 2, 2015). Once the district court did so, the government was entitled to provide it with
    relevant evidence and argument. See United States v. Dykes, --- F. App’x ---, 
    2018 WL 1083047
    ,
    at *3 (2d Cir. 2018) (“[T]he government does not violate a plea agreement if it provides
    information in response to a sentencing judge’s request.” (citing United States v. Goodman, 165
    1
    Persico provides no record citation as to where or when this supposedly occurred. As noted by the district court,
    “[t]he sole basis for [this] argument appears to be a single line in the Pre-sentence Report which states, in pertinent
    part, that ‘the Government maintains it can prove by a preponderance of the evidence that Michael J. Persico was
    involved in several additional significant crimes.’” United States v. Persico, 
    61 F. Supp. 3d 257, 265
     (E.D.N.Y.
    2014) (quoting PSR at 14). Accordingly, like the district court, we assume for purposes of this appeal that the United
    States Attorney’s Office made such a representation to the Probation Department. See 
    id.
                                              3
    F.3d 169
    , 173 (2d Cir. 1999) (finding no breach where “it was [the sentencing judge], not the
    Government, who raised questions” and “directed the Government to provide him with the
    pertinent information, which was clearly within his power”)); cf. United States v. Vaval, 
    404 F.3d 144, 154
     (2d Cir. 2005) (“[T]he provision of requested legal and factual information to the
    court . . . is an essential function of the government at sentencing.”).
    Nor did the government implicitly advocate for an improper sentence through its choice
    of words in either submissions or oral arguments to the district court. Although the government
    may have engaged in some editorializing, it hewed to the plea agreement by consistently
    advising the district court that it was seeking a sentence within the Guidelines’ recommended
    range.
    In arguing that the government implicitly engaged in improper advocacy, Persico
    primarily cites as examples phrases used by the government at his sentencing hearing and in a
    letter submitted to the district court on January 19, 2015. Yet that four-page letter reiterated no
    fewer than four times that the government was seeking a Guidelines sentence. Similarly, at
    Persico’s sentencing hearing the government initially stated that it was “generally content to rely
    on the written records” in which it was “asking for a sentence in the guidelines range.” App. 305-
    06. It was only after a lengthy argument from Persico in favor of a sentence below the Guidelines
    range that the government responded with the language about which Persico now complains. Yet
    even at that juncture the government made clear that it was opposing Persico’s “requested
    sentence, a sentence below the guidelines range,” and concluded its remarks by arguing that “a
    sentence within the guidelines range is necessary.” Id. at 322. “[N]othing in the plea agreement
    barred the government from forcefully advocating for a sentence [within] the range” and it was
    “thus free to argue in a manner casting pejorative light on the defendant and his criminal
    4
    activity,” particularly after the defendant “opened the door to this response when he attempted to
    characterize the criminal scheme in a manner favorable to himself.” United States v. Amico, 
    416 F.3d 163, 165-66
     (2d Cir. 2005); see also, e.g., Riera, 
    298 F.3d at 135-36
     (finding that a letter
    “contain[ing] a few ill-advised descriptive words” that “did not explicitly advocate a departure”
    from Guidelines’ recommendation did not violate plea agreement where government “repeatedly
    told the district court that it had not intended and was not advocating a departure”).
    Next, Persico argues that there was no factual basis for his guilty plea. See Fed. R. Crim.
    P. 11(b)(3). Persico pleaded guilty to conspiring in violation of 
    18 U.S.C. § 371
    , which requires
    “(1) an agreement between two or more persons to commit an unlawful act; (2) knowingly
    engaging in the conspiracy intending to commit those offenses that were the objects of the
    conspiracy; and (3) commission of an ‘overt act’ by one or more members of the conspiracy in
    furtherance of the conspiracy.” United States v. Reyes, 
    302 F.3d 48, 53
     (2d Cir. 2002). The
    unlawful act in question was the making of an “extortionate extension of credit,” which is
    defined as “any extension of credit with respect to which it is the understanding of the creditor
    and the debtor at the time it is made that delay in making repayment . . . could result in the use of
    violence or other criminal means to cause harm to the person, reputation, or property of any
    person.” 
    18 U.S.C. § 891
    (6); see also 
    18 U.S.C. § 892
    (b). “In making its factual-basis
    determination, the court is not required to rely solely on the defendant’s own admissions,”
    United States v. Maher, 
    108 F.3d 1513, 1524
     (2d Cir. 1997), but rather it may also “look to
    answers provided by counsel for the . . . government, the presentence report, or whatever means
    is appropriate in a specific case—so long as the factual basis is put on the record,” United States
    v. Smith, 
    160 F.3d 117, 121
     (2d Cir. 1998) (internal quotation marks and alterations omitted)).
    5
    We find that there was a factual basis for Persico’s guilty plea. In particular, it was stated
    on the record at Persico’s plea allocution that he “arranged for someone to extend [a] $100,000
    loan” at “a rate of interest in excess of the annual rate of 45 percent per year” to debtors who
    “believed that Mr. Persico and his coconspirators had a reputation for the use of extortionate
    means to collect extensions of credit,” App. 141-42, and that “his coconspirators reasonably
    believed at the time that they . . . would use extortionate means to collect an extension of credit,”
    
    id. at 144
    . These facts, which were not disputed, allowed the district court to conclude that
    Persico’s conduct “is in fact an offense under the statutory provision under which he [pleaded]
    guilty.” Maher, 
    108 F.3d at 1524
    .
    Persico’s arguments to the contrary are unavailing. First, he makes several assertions of
    fact that support his actual innocence. “These arguments could have been made to a jury if [he]
    had not pleaded guilty,” but “they have been waived” for purposes of the appellate process
    because “[q]uestions that a defendant might raise as to which of competing inferences should or
    might be drawn, or whether there are innocent explanations for behavior that could be viewed as
    culpable, do not survive his plea of guilty.” 
    Id. at 1528-29
    .
    Second, Persico argues that he did not expressly concede the facts proffered by the
    government at his plea allocution. But his express agreement with the government’s
    representations was not necessary so long as he did not “actively contest[] a fact constituting an
    element of the offense.” United States v. Culbertson, 
    670 F.3d 183, 190
     (2d Cir. 2012).2
    2
    The only aspect of the record that Persico challenged whatsoever at his plea allocution was what his counsel
    referred to as the superseding information’s “extraneous language about the Colombo family,” which was “not
    something that Mr. Persico agree[d] to or [was] allocuting to.” App. 143. As an initial matter, merely declining to
    agree with the government’s allegations—without providing a basis for any disagreement with the allegations or
    expressly denying them—is an ambiguously neutral position that falls short of active disagreement. See Culbertson,
    
    670 F.3d at 190
     & n.3. Moreover, Persico argued that such allegations were “extraneous” precisely because they
    were not “part and parcel of the charge” to which he pleaded. App. 143. Accordingly, he cannot now argue that a
    factual basis was necessary for such “extraneous” allegations.
    6
    Third, Persico contends that there was no evidence that he had the requisite intent to have
    conspired in an extortionate extension of credit. Direct evidence of his intent was not necessary,
    however, as it could reasonably be inferred from the acknowledged terms of the loan itself. See
    United States v. Lombardozzi, 
    491 F.3d 61, 71
     (2d Cir. 2007) (“[A] jury may permissibly infer
    that someone who makes an unsecured loan and charges exorbitant interest rates surely intends
    to back up the loan with threats of violence.”).
    Finally, Persico maintains that the district court failed to ensure that he understood the
    nature of the charge to which he pleaded guilty. Aside from a discussion regarding general
    propositions of law, the sum total of Persico’s argument concerning his lack of understanding
    consists of a single sentence that is written at a high level of generality. By failing to elaborate
    further, Persico has waived this contention. See Tolbert v. Queens Coll., 
    242 F.3d 58
    , 75 (2d Cir.
    2001) (“It is a settled appellate rule that issues adverted to in a perfunctory manner,
    unaccompanied by some effort at developed argumentation, are deemed waived.” (internal
    quotation marks omitted)). Even if that were not so, we would nevertheless find no flaw in the
    lengths to which the district court went at Persico’s plea allocution in order to comply with Fed.
    R. Crim. P. 11(b)(1)(G).
    We have considered all of the defendant’s arguments on this appeal and find in them no
    basis for vacatur. Accordingly, we AFFIRM the judgment of the district court.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
    7